Majority ruling gives the minnows little chance

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Hard-pressed lawyers across the country will be bitterly
disappointed in yesterday's thinking from a majority of the High
Court. The members of the court, with the exception of Justice
Michael Kirby, trotted out plenty of well-worn reasoning as well as
some exciting new ideas to bolster for future generations of
hopelessly negligent advocates their immunity from civil action
brought by unhappy clients.

The preservation of the immunity dashes a wonderful opportunity
to revive the fortunes of solicitors and barristers suffering from
the torment of tort law reform, the death of workers compensation
litigation and an unrewarding future fighting for the victims of
asbestos-related diseases.

What it means for the actual victims of an advocate's negligence
in court proceedings doesn't bear thinking about, which is
precisely the approach of the High Court majority.

Chief Justice Murray Gleeson teamed up with the other dry sticks
(William Gummow, Kenneth Hayne and Dyson Heydon) to formulate a
judgement against tossing away the ancient immunity. Justices
Michael McHugh and Ian Callinan wrote separate judgements in
support of the majority, and Justice Kirby was the sole
dissenter.

The lonely reasons of the nonconformist, despite the sniping
from McHugh, restore Kirby to the position of being the only
reasonable human on the High Court. It's not an easy position to
hold and he could lose it (again) tomorrow should he depart from
the path of righteousness in another decision.

What stimulated so much anticipation about yesterday's decision
was that on Tuesday the New Zealand Court of Appeal ruled against
the immunity from suit in a case called Sun Poi Lai v
Chamberlains.

Four years ago the House of Lords struck down the immunity in
England and Wales. The immunity does not exist in the US, and a
judge in Canada has struck it down. So would Australia be swept
along by the tide of events or would the ancient rites of the law
be kept sacred? Well, we now know the answer.

You'd be in awe at the convolutions the majority performed to
cast the House of Lords decision as unworthy of being followed. The
House was divided in aspects of the decision. The Poms were
influenced by the European Convention on Human Rights and the Human
Rights Act which, thank heavens, we don't have to worry about here
because everyone has the protection of the common law and the High
Court itself. The legal profession is organised differently in
England. We don't have to follow the House of Lords, and
particularly when English jurisprudence is now infected with a lot
of foreign human rights stuff.

The High Court says that what people respect and what is a
"central and pervading tenet" of our jurisprudence is the idea of
finality. One might rub one's eyes in disbelief at reading such a
sentiment in a judicial system in which length of time is the
measure of reward and where appellate correction is the order of
the day.

But apart from the beauty of finality and "the quelling of
controversies", the court gave weighty consideration to the
importance of the judicial process as an aspect of government.

Here the majority excelled: "The community at large has a vital
interest in the quelling of that controversy. And that is why
reference to the 'judicial branch of government' is more than a
mere collocation of words designed to instil respect for the
judiciary. It reflects a fundamental observation about the way this
society is governed."

It might be useful to just pause a moment right there and
remember what this is all about. In the case at issue, Ryan
D'Orta-Ekenaike, the applicant, was charged with rape. He wanted to
plead not guilty, but his legal advisers strongly urged him at the
committal to plead guilty - which is what he did.

At his trial he changed his plea to not guilty, but the earlier
guilty plea was led in evidence and he was convicted and sent to
jail. He successfully appealed, and at his retrial there was no
mention of the earlier plea and he was acquitted. He had wanted to
plead not guilty all along, but his lawyers urged him to do
otherwise. Now he cannot sue them.

One fervently hopes that D'Orta-Ekenaike is now happy that his
controversy has been quelled.